So I’m an extremist

After our podcast last week, Tim Lee wrote a blog post expanding on our conversation about spectrum policy. I thought I’d take a little space here to respond.

Although we will probably continue to disagree on empirical questions, I think philosophically there is no light between Tim and me. He succinctly expresses our shared view when he writes,

The question advocates of free markets (“extreme” or otherwise) need to ask is not: which property rights should we create? Rather, we need to ask: which set of regulations prevents congestion at the lowest cost in liberty? You want the set of rules that maximizes individual freedom; rules that are clear and predictable and give government officials as little opportunity as possible to make mischief.

Tim and I simply come to different conclusions in our cost-benefit calculation when we look at the competing sets of rules for spectrum.

As Tim points out, radio spectrum is not like sunlight. We can’t use as much of it as we want without congestion. This precludes an open access regime. The question then is, do we create a regime were private actors own the spectrum and make decisions about how to best utilize it? (Government’s only function in this scenario would be to enforce contracts and property rights.) Or do we allow the government to in essence own the spectrum and determine which specific uses will be permitted? (Government in this scenario decides the rules that govern a commons, which is not a trivial matter since it will allow some uses and preclude others.)

So, which regime presents “a lower cost in liberty?” Which one is more “clear and predictable?” Which one presents “government officials as little opportunity as possible to make mischief?” I tend to think the former fits the bill much better than the latter. Tim thinks we can have a little bit of both; that both can be equally efficient. He seems to see little difference between government-as-court and government-as-regulator. I’m less sanguine about government’s ability to set rules for spectrum that get you to the same or better outcome than a property rights regime.

In case there’s any confusion about it, I agree with Tim that free-market principles do not demand that everything be propertized. But in the particular case of spectrum, I believe property and markets are more efficient than either command-and-control allocation or a government commons. And yes, I’m talking about the whole spectrum. Tim identifies the relevant questions to ask in making this determination:

[W]hich set of regulations maximizes the freedom of individuals to use the spectrum as they choose? And which set of regulations will lead to the most efficient utilization of spectrum?

I think the second question informs the first. Without some form of resource allocation, a tragedy of the commons ensues and no one gets to use the spectrum. So, what we need to find is the set of rules that get us the most efficient and most valued uses.

Tim says that my “preferred scheme of exclusive licenses for the entire spectrum doesn’t fit the bill because it puts a thumb on the scale in favor of large, capital-intensive firms that can win multi-billion dollar auctions.” First, I don’t see why this should be the case. The reason why spectrum auctions today fetch billions of dollars in revenue is that the vast majority of the radio spectrum is either in civilian government or military hands, or in private hands but not tradable and limited by law to specific uses. Only a small sliver of it has been auctioned as flexible-use licensed spectrum. In a world of privatized radio frequencies, the auction price of spectrum would fall relative to what we see today.

But putting that aside, how are capital-intensive uses necessarily inconsistent with the most efficient utilization of spectrum? Tim seems to be suggesting that even if people highly value “small-scale, short-range applications like WiFi,” there is no way that a market could provision these. I don’t see why that should be the case. Tim pooh-poohs the notion that a firm (maybe a consortium like the Wi-Fi Alliance?) or a non-profit spectrum conservancy as I have been suggesting could adequately provide the use. He says that such a scheme would be relegated to second-class citizen status, but he doesn’t explain why.

Tim says that what’s needed is a policy that accommodates both long-distance high-powered uses like broadband or wireless backhaul, and short-range low-power commons-type uses like Wi-Fi and Bluetooth. The sort of property- and market-based policy I have in mind is exactly that.

Tim also says that a “decision that all spectrum will be exclusively licensed is a government choice whose consequences can’t be fully corrected by subsequent market transactions.” First, what are these problematic consequences that will need correction? Second, if correcting them means that government needs to have control over some of the spectrum, it always has the power of eminent domain. In a spectrum market setting, we would have a much better sense of the true opportunity cost of placing spectrum under government management. Because it would have to pay just compensation for what it takes, the government would have to internalize the true costs of its decisions. And of course government can avoid using a takings. I can imagine a big-bang spectrum auction where the government is one of the bidders for some of the spectrum—again, fully internalizing the true cost of the spectrum.

Finally, I hope it’s clear why I’m so skeptical of government’s ability to manage a spectrum efficiently. It’s for all the reasons Tim masterfully lays out when he talks about bottom-up solutions generally being superior to top-down ones. Government planners do not have the information or incentives to set the most efficient rules. Worse, it’s likely that the rule-setting process is corruptible so that one possible set of rules is favored over another for political reasons. And talk about correcting unintended consequences. I’m pretty sure Tim will agree markets tend to be more speedy than bureaucracies.

Jerry Brito / Jerry is a senior research fellow at the Mercatus Center at George Mason University, and director of its Technology Policy Program. He also serves as adjunct professor of law at GMU. His web site is jerrybrito.com.